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Sunday, July 3, 2016

U. S. Supreme Court Again Rules on the Use of Race in Higher Education Admissions: an Analysis

U. S.
Supreme Court Again Rules on the Use of Race in Higher Education Admissions: an
Analysis

Editor:The U.S. Supreme Court again ruled on the use
of race in Higher Education admissions.The case, Fisher v. University of Texas at Austin, decided on June 23rd,
follows several earlier pivotal affirmative action cases: the 1978 Regents of
the University of California v. Bakke, the 2003 Gratz v. Bollinger, the 2003
Grutter v. Bollinger and the earlier Fisher v. University of Texas at Austin in
2013. (See chart at the bottom)

Although we
have yet to publish articles on this issue, the Journal of Educational
Controversy did devote an issue to the use of race in public school admission policies
in its 2007 issue (Volume 2, Number 1).In that issue, we considered the U.S. Supreme Court decision in PICS v Seattle School District, with
legal arguments on both sides against a background of Washington state history
and politics. Because the case was not decided until after the issue was
published, we followed up with a discussion of the decision on our rejoinder
page. We may address this issue as it affects higher education in the future.

Below is an
analysis of the recent Fisher case by Scott Jaschik, editor of Inside Higher Ed.Mr. Jaschik has given us permission to
reprint his analysis of the decision.

Supreme
Court Upholds Consideration of Race in Admissions

Scott
Jaschik, Editor, Inside Higher Ed

The U.S.
Supreme Court on Thursday upheld the University of Texas at Austin’s
consideration of race and ethnicity in college admissions. Some parts of the
decision in the case, Fisher v. University of Texas at Austin [1], related to
features unique to that university.

But other
parts of the case will likely apply to admissions and financial aid policies in
most of American higher education.

The court ruled [2] that the primary reason that the plaintiff in the case was denied
admission to the university was not its consideration of race in admissions,
but its “10 percent plan,” in which the top 10 percent of high school graduates
are admitted to the public college or university of their choice.

The
university does have “a continuing obligation” to meet the legal test of
“strict scrutiny” by “periodically reassessing the admission program’s
constitutionality, and efficacy, in light of the school’s experience and the
data it has gathered since adopting its admissions plan, and by tailoring its
approach to ensure that race plays no greater role than is necessary to meet
its compelling interests,” the decision says.

At the time
that the plaintiff was rejected for admission, however, the decision said, the
university had met that burden.

“The record
here reveals that the university articulated concrete and precise goals --
e.g., ending stereotypes, promoting ‘cross-racial understanding,’ preparing students
for ‘an increasingly diverse workforce and society,’ and cultivating leaders
with ‘legitimacy in the eyes of the citizenry’ -- that mirror the compelling
interest this court has approved in prior cases,” said the decision.

The decision
was written by Justice Anthony M. Kennedy, generally considered a swing vote on
many issues, but who has consistently in the past been skeptical of education
policies based on race. He was joined by Justices Ruth Bader Ginsburg, Stephen
G. Breyer and Sonia Sotomayor.

In a
dissent, Justice Samuel Alito Jr. -- joined by Chief Justice John Roberts and
Justice Clarence Thomas -- strongly criticized the decision and the University
of Texas policies. The dissent calls the university’s arguments “shifting,
unpersuasive and, at times, less than candid.”

Justice
Elena Kagan, who worked on the case as solicitor general before she joined the
Supreme Court, recused herself from the case. When Justice Antonin Scalia died
in February, the stage was set for a ruling by only seven justices. Scalia consistently opposed the consideration of race in admissions [3], so his death
may have cleared the way for today’s decision. A four-four tie on the case
would still have left the University of Texas policies intact, but would have
not have the same power as a precedent on the issue.

A defeat for
affirmative action had been widely expected because, with Kagan not voting,
only three justices on the court are considered reliable backers of affirmative
action.

Michael A.
Olivas, the William B. Bates Distinguished Chair in Law at the University of
Houston and interim president of the university’s downtown campus, is one of
the few legal observers who has consistently predicted that affirmative action
would survive the legal challenge brought by Abigail Fisher, a white woman
rejected for admission by the University of Texas. Via email on Monday, he
said, “It is about time that Fisher accepts that she was inadmissible, and that
she lost, once again. No applicant of color would ever get so many bites at the
apple, and whites still make up a disproportionate percent of percentage plan
admits and discretionary admits at UT.”

Fisher,
through her lawyers, released this statement: “I am disappointed that the
Supreme Court has ruled that students applying to the University of Texas can
be treated differently because of their race or ethnicity. I hope that the
nation will one day move beyond affirmative action.”

Leaders of
many higher education groups praised the ruling. President Obama spoke about
the decision at a White House briefing, saying, “I’m pleased that the Supreme
Court upheld the basic notion that diversity is an important value in our
society, and that this country should provide a high-quality education to all
our young people, regardless of their background. We are not a country that
guarantees equal outcomes, but we do strive to provide an equal shot to
everybody. And that’s what was upheld today.”

Donald Trump,
the presumptive Republican nominee, has not weighed in since the decision was
announced.

Today’s ruling
is the second time the Supreme Court has considered the Fisher case.

Ruling 7 to 1
[8], the court in 2013 found that the U.S. Court of Appeals for the Fifth
Circuit had erred in not applying “strict scrutiny” to the policies of UT
Austin, which were challenged by Fisher. She said that her rights were violated
by UT Austin’s consideration of race and ethnicity in admissions decisions.
Fisher’s lawyers argued that the University of Texas need not consider race
because it has found another way to assure diversity in the student body, the
10 percent plan.

Fisher was a
high school senior when she first sued UT Austin [9] in 2008. She enrolled at
and graduated from Louisiana State University after she was rejected by UT but
has continued the legal case over her rejection.

The 2013 ruling
essentially raised the bar for colleges in terms of how they had to justify the
consideration of race and ethnicity in admissions, but did not bar its use.

In July 2014, a
three-judge panel of the U.S. Court of Appeals for the Fifth Circuit upheld, 2to 1, the UT admissions plan [10]. And it is an appeal of that ruling on which
the U.S. Supreme Court ruled today.

The majority
decision from the appeals court said that just because Texas could get some
diversity based on the percentage plan alone does not mean it can’t do more
than that. “An emphasis on numbers in a mechanical admissions process is the
most pernicious of discriminatory acts because it looks to race alone, treating
minority students as fungible commodities that represent a single minority
viewpoint,” the judges wrote. “Critical mass, the tipping point of diversity,
has no fixed upper bound of universal application, nor is it the minimum
threshold at which minority students do not feel isolated or like spokespersons
for their race.”

Further, the
appeals court said that the University of Texas is correct not to rely solely
on the percentage plan, which in turn works because of segregation. The
plaintiff’s “claim can proceed only if Texas must accept this weakness of the
top 10 percent plan and live with its inability to look beyond class rank and
focus upon individuals,” the decision says. “Perversely, to do so would put in
place a quota system pretextually race neutral. While the top 10 percent plan
boosts minority enrollment by skimming from the tops of Texas high schools, it
does so against this backdrop of increasing resegregation in Texas public
schools, where over half of Hispanic students and 40 percent of black students
attend a school with 90 [to] 100 percent minority enrollment.”

Justice Alito's
dissent argued that the majority decision did not comply with the Supreme
Court’s 2013 decision. “At best, the university’s attempted articulations of
‘critical mass’ before this court are subjective, circular or tautological,”
the dissent says. “The university explains only that its ‘concept of critical
mass is defined by reference to the educational benefits that diversity is
designed to produce.’ And, in attempting to address when it is likely to
achieve critical mass, the university explains only that it will ‘cease its
consideration of race when it determines … that the educational benefits of
diversity can be achieved at UT through a race-neutral policy ….’

“These
articulations are insufficient. Under the rigors of strict scrutiny, the
judiciary must ‘verify that it is necessary for a university to use race to
achieve the educational benefits of diversity.’ It is not possible to perform
this function when the university’s objective is unknown, unmeasurable or
unclear.”

Anxious
Presidents

College and
university presidents, most of whom backed the University of Texas, have been
waiting anxiously for today's ruling.

Michael V.
Drake, president of Ohio State University, was formerly chancellor of the
University of California, Irvine, which is banned by the California
Constitution from considering race or ethnicity in admissions. He said that the
California limits "make the job of creating inclusive higher education
that much more difficult."

He said that
Ohio State, like Texas, does consider race and ethnicity, but as one factor
among many. "We are looking for the very best, looking at a variety of
factors," he said. "This decision affirms the real value of inclusion
in a society like ours -- particularly in bringing people from traditionally
marginalized groups into our system."

Thomas
Sullivan, a lawyer and legal scholar who is president of the University of
Vermont, said he saw the decision as a strong victory for higher education. The
court could have ruled strictly on technical grounds that Fisher didn't have standing,
or ordered more hearings. Instead, he said, the court affirmed prior rulings on
the value of diversity and also of the appropriate role for colleges in
determining (within some limits) their admissions policies.

"This is a
big win in terms of saying colleges should have some discretion," he said.
At the same time, he noted that the decision continues to outline requirements
(as past decisions have done) for colleges to meet before they use race or
ethnicity as a factor in admissions.

Deference to Higher
Education

A key part of
the first Supreme Court ruling in Fisher was that colleges and universities
were, as Sullivan noted, owed some deference on these issues. The earlier
ruling limited that deference, and Justice Kennedy cited that limit. "No
deference is owed when determining whether the use of race is narrowly tailored
to achieve the university’s permissible goals," he noted.

But while that
provision attracted considerable attention last time around, Kennedy stressed
areas where colleges should in his opinion receive deference. He quoted from
the earlier decision: "The decision to pursue ‘the educational benefits
that flow from student body diversity’ … is, in substantial measure, an
academic judgment to which some, but not complete, judicial deference is
proper."

In this case,
Kennedy also said that it was relevant that the University of Texas was acting
under the percentage plan -- even if Fisher didn't challenge that -- and that
the Texas Legislature imposed the percentage plan as a race-neutral way to
promote some level of diversity. Justice Kennedy noted that without Fisher
having challenged the plan, there wasn't a legal record on the plan itself.

"That
legislative response, in turn, circumscribed the university’s discretion in
crafting its admissions policy," Kennedy wrote. "These circumstances
refute any criticism that the university did not make good-faith efforts to
comply with the law."

While Kennedy
strongly defended the constitutionality of the Texas admissions policies, he
also stressed the obligations of the university (and presumably other colleges)
to constantly evaluate whether they need to consider race and ethnicity to
achieve diversity. Colleges, he said, must gather data on various strategies to
promote diversity.

"As the
university examines this data, it should remain mindful that diversity takes
many forms. Formalistic racial classifications may sometimes fail to capture
diversity in all of its dimensions and, when used in a divisive manner, could
undermine the educational benefits the university values," the decision
says. "Through regular evaluation of data and consideration of student
experience, the university must tailor its approach in light of changing
circumstances, ensuring that race plays no greater role than is necessary to
meet its compelling interest."

The Influence
of Race

In his dissent,
Justice Alito argued that in fact the university is doing what Kennedy would
bar: making race the key factor in admissions.

"Although
UT claims that race is but a 'factor of a factor of a factor of a factor,' UT
acknowledges that 'race is the only one of [its] holistic factors that appears
on the cover of every application,'" Alito wrote, quoting from
depositions. "Consideration of race therefore pervades every aspect of UT’s
admissions process."

Further, Alito
questions why Latino applicants receive more of an edge in admissions than do
Asian-American applicants, who also add to diversity. And he adds that the
university's argument that it needs a "critical mass" of minority
students is too vague to be a justification.

Alito argues
that the majority is ignoring the earlier Fisher decision in not sufficiently
questioning the university's arguments.

"The
majority’s uncritical deference to UT’s self-serving claims blatantly
contradicts our decision in the prior iteration of this very case, in which we
faulted the Fifth Circuit for improperly 'deferring to the university’s good
faith in its use of racial classifications,'" Alito writes. "As we
emphasized just three years ago, our precedent 'ma[kes] clear that it is for
the courts, not for university administrators, to ensure that' an admissions
process is narrowly tailored."

It is possible
that there will be further challenges to colleges' consideration of race. Parts
of the decision do rest on unique factors at the University of Texas. But many
critics and supporters of affirmative action expected this to be the case that
might change things dramatically. For now, a legal battle that started in 2008
appears to be over.

1978: In Regents of the University of California v. Bakke, the court ruled that the medical school at the University of California, Davis, could not reserve some slots with separate admissions standards for minority applicants. But the court also ruled that colleges could consider race and ethnicity in admissions decisions in ways that did not create quotas.

2003: In Gratz v. Bollinger, the court ruled that the University of Michigan at Ann Arbor had unconstitutionally used an undergraduate admissions system in which underrepresented minority applicants received points on the basis of their ethnic or racial background.

2003: In Grutter v. Bollinger, the court ruled that the University of Michigan's law school was within its constitutional rights in considering applicants' race and ethnicity because it did so through a “holistic” review and not by simply awarding points based on race and ethnicity.

2013: In Fisher v. University of Texas at Austin, the court ruled that lower courts needed to apply “strict scrutiny” and not give colleges deference in reviews of challenges to the consideration of race and ethnicity in admissions decisions.

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